We’ve Been Having These Fights A Long Time

And we’ll have them again at some point.

I recently read a book called The Forgotten Presidents, by the University of North Carolina law professor Michael Gerhardt.

The book takes twelve presidents who are often overshadowed in the history books — Martin Van Buren, William Henry Harrison, John Tyler, Zachary Taylor, Millard Fillmore, Franklin Pierce, Chester Arthur, Grover Cleveland, Benjamin Harrison, William Howard Taft, Calvin Coolidge, and Jimmy Carter — and focuses on their impact on constitutional law, examining their role in the evolution of the presidency. (Yes, no one serves as president without leaving a mark on the office, even Millard Fillmore.)

The book was published in 2013, but I’m glad that I read it now¹, as we’re in the middle of many pitched battles over executive power, including debates over a president’s appointments and removal powers, war powers, role in the legislative process, relationship with state governments, and more.

Gerhardt’s work offered a helpful reminder that we’ve struggled and survived through many of these same fights before, even if many of the episodes (and participants) are now largely forgotten.

For example, the president’s ability to remove all officials in the executive branch has been a key topic of controversy over the past year. Two highly awaited Supreme Court opinions this term — Trump v. Slaughter (on the president’s ability to fire independent agency heads) and Trump v. Cook (on the president’s ability to fire Federal Reserve governors) — will weigh in on this question. (Most observers expect the court will allow the president to fire officials like the heads of the Federal Trade Commission and the National Labor Relations Board, but draw the line at allowing the president to fire Fed governors.)

While the intense focus around Trump’s crop of recent firings can make the issue seem novel (and will only seem more so when the two aforementioned decisions are handed down in June), this debate is actually as old as it gets: in fact, as I’ve written previously, the First Congress spent more than a month debating this exact question of the president’s removal power. (The debate ended with the “Decision of 1789,” in which Congress interpreted the Constitution as allowing the president to fire Cabinet secretaries. Independent agencies were not yet a thing, and therefore weren’t touched on.)

These debates today often get tied into an idea known as Unitary Executive Theory, a term that dates back to the 1980s. But there were presidents who were essentially Unitary Executive Theorists long before that; almost every one of the “forgotten presidents” engaged in fights with Congress on these grounds. Andrew Johnson, not mentioned in the book, was even impeached for running afoul of Congress on removal.

War powers, also obviously quite relevant right now, are similarly litigated again and again throughout the book. During the Martin Van Buren administration, the president deployed troops to fight various Native American tribes, despite a lack of congressional authorization. There are cases, his attorney general explained, “in which a war between the United States and a public enemy may exist without the sanction of Congress—as where an unexpected war is commenced against the United States and waged before Congress acts upon the subject.” Sounds like something Stephen Miller might say today.

One of the crazy stories from the book that I’d never heard of was from a feud between U.S. Supreme Court Justice Stephen Field and California Supreme Court Justice David Terry. At the time, Terry’s wife was claiming to have been secretly married to a U.S. senator who had since passed away, and was suing for the right to his estate. Field ruled against the Terrys; they attacked a court marshal in anger. He sentenced both of them to prison. They swore to get revenge.

At this point, President Benjamin Harrison intervened and assigned a U.S. marshal to protect Justice Field from the threats. There are disputes about what happened next, but the bottom line is that some sort of altercation eventually occurred between Field and Terry, and the U.S. marshal shot and killed Terry. Because there was no law allowing a president to assign a marshal to protect a Supreme Court justice — Harrison just decided to do it — or giving a marshal criminal immunity while performing their duties, the U.S. marshal was charged with murder. The Supreme Court (with Field recusing himself) ultimately ruled in favor of the marshal, reasoning that Harrison had acted properly “as the principal conservator of the peace of the United States” and the marshal was carrying out Harrison’s orders.

According to Gerhardt, this bizarre episode was a key moment in the presidency’s accumulation of what is known as “inherent authority” — that is, the idea that the president has a nebulous but powerful authority to do certain things that can be derived from his responsibilities in Article II of the Constitution, even if they aren’t spelled out explicitly in the founding charter or authorized by a specific act of Congress. This question of inherent powers has come up again and again in the Trump era.

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One of Gerhardt’s forgotten presidents was William Henry Harrison, who is best known for speaking too long at his frigid 1841 inauguration, getting sick, and dying one month later.

Gerhardt included a quote from Harrison’s inaugural address, which I realized I had never read. (He went on for 2+ hours, so he must have had something to say!) I hunted down a copy of the speech, and was so struck by the address that it ended up becoming the theme of my guest opinion piece for the Washington Post. Here’s that gift link again.

Harrison’s inaugural address offers yet another reminder that many of the fights that have animated the Trump presidency didn’t start in 2025: the 9th president’s speech expounds at length on the president’s relationship with Congress. What was so striking about Harrison’s address, however, was how he used his debut as president not to preach presidential power, as we’ve become accustomed to, but to weigh in on the side of Congress.

Harrison promised to protect Congress’ independence, pledging never to shove anything down the throat of legislators.

“All the influence that I possess shall be exerted to prevent the formation at least of an Executive party in the halls of the legislative body,” Harrison said. “I wish for the support of no member of that body to any measure of mine that does not satisfy his judgment and his sense of duty to those from whom he holds his appointment.”

He noted that the Constitution vests “all the legislative powers” in the Congress, and said that it “would be a solecism in language to say that any portion of these is not included in the whole.” In other words: he would stay out of Congress’ way. The president, he believed, had no bigger role to play in the legislative process than “every other citizen.”

While Trump’s allies often suggest that legislators and judges should not get in the president’s way because he was elected by 77 million people and they weren’t, Harrison would have laughed at the notion that the president boasts a source of authority that Congress lacks.

“It is preposterous,” Harrison said, “to suppose that a thought could for a moment have been entertained that the President, placed at the capital, in the center of the country, could better understand the wants and wishes of the people than their own immediate representatives, who spend a part of every year among them, living with them, often laboring with them, and bound to them by the triple tie of interest, duty, and affection.”

There is much more to learn from Harrison, who would have hated Unitary Executive Theory, paid homage to freedom of the press, and didn’t believe presidents should be able to run for a second term (much less a third one). I talk about all that in the Post piece, trying to put Harrison in the context of his time (he was a member of the Whig Party, which was dedicated to these ideals of congressional government,² and elected as a rejoinder to Andrew Jackson, a populist who expanded executive power) and asking whether — just as Harrison’s vision of presidential modesty followed Jackson, and Jimmy Carter’s post-Watergate reforms followed Richard Nixon — a reformist looking to shrink executive power could follow Donald Trump.

Whether or not a candidate in this mold emerges in 2028, I still find it fascinating to reflect on how Jacksons and Harrisons have popped up throughout our history, in response and reaction to each other, as we fight the same fights and pick over the same vague constitutional texts in every generation.

Why, then, do the disputes still feel so novel?

One theory is that we are simply emerging out of a period, from roughly the 1950s through the 1990s, where politics were unusually calm. Most of the people who currently participate in and comment on American politics for a living came of age during this period, and therefore this new post-90s period feels unusually frenzied, even though the era of their upbringing was actually the exception, not the rule.

Of course, there were still plenty of controversies in this period, but many of the flashpoints (from civil rights, to McCarthyism, to Vietnam) didn’t strictly break out along partisan lines, which gave them a different feel. When every political dispute is stacked on top of each other as yet another Team Red vs. Team Blue showdown, it gives the era a distinct sense of division, even if there were individual components of division before, just ones that showcased more variable alliances.

For a good chunk of this period, there was also a Republican president and a Democratic Congress, adding to a sense of stability (and unity, since the two often worked together) that contrasts with the intense contestation of our current politics. And the threat of communism gave Americans a common enemy, offering a patina of bipartisanship to foreign policy. People sometimes grouse about how partisan confirmation battles have gotten (Ruth Bader Ginsburg was confirmed 96-3!), or nostalgize about how the media used to be neutral and trustworthy (Why can’t we just go back to the days of Walter Cronkite?)

In truth, though, these are just still more ways that the post-war, pre-internet period was unique: Gerhardt’s book chronicles numerous examples of bitterly fought confirmation fights. And the brief era when American political media was widely seen as neutral and non-partisan was mostly a blip in a longer history that started with openly partisan newspapers in the 1790s and continued with “yellow journalism” a century later.

Is our current era of polarization here to stay? It’s impossible to say.

Recently, while working on a piece about the talking filibuster, I spoke with Mike Fragoso, the former chief counsel to then-Senate Republican Leader Mitch McConnell. Fragoso is skeptical that the talking filibuster will work as a way to get around the typical 60-vote threshold to cut off debate; in our interview, he also raised the possibility to me that it might not be necessary.

Sure, controversial bills are rarely able to get past that 60-vote threshold now, with the parties so perfectly polarized along ideological lines (with conservatives in the Republican tent and liberals in the Democratic fold, which was decidedly not the case in the 50s-to-90s). But that doesn’t mean this alignment will last forever.

On the Democratic side, Fragoso noted, there is a split between the progressives and the upper middle-class suburban professionals who have moved into the party in recent years, as seen (for example) in Cory Booker’s new tax bill and the ensuing divides over whether the Democrats should become the party of tax cuts. Republicans, meanwhile, are divided between traditional conservatives and populists; just look at Josh Hawley’s support for pro-union legislation.

“You no longer really have liberal Republicans and you no longer really have conservative Democrats,” Fragoso said. “But it’s not obvious that that’s the natural way of the world. It really wasn’t the way of the world until relatively recently.” Fragoso thinks it’s possible that the parties’ economic positions will become scrambled enough that you could see bipartisan coalitions breaking out on big issues once again, as Republicans and moderate Democrats unite, say, to cut taxes while Democrats and populist Republicans unite to raise them.

“If that’s the case,” Fragoso said, “then I can see a future where you’re getting 60 votes on legislation [even without changes to the filibuster].”

I can’t say for sure if Fragoso is right. But it’s true that if you observe history enough, you notice certain cyclical patterns starting to form. I don’t think this happens on any sort of set schedule, like some theorists have proposed, but after enough time, there tends to be backlash against every dominant way of life, and then backlash to that — not just in terms of reigning political ideology, but in terms of reigning political culture as well.

We are constantly cycling through successive presidents who flex executive power, and those who use it meekly; those who clash with Congress, and those who respect its independence; those who encourage divisiveness, and those who work towards unity. Similarly, periods of fierce polarization can turn into eras of relative bipartisanship. Even if it seems unlikely when inside one period that the cycle will spit out another one eventually, it always does. Things that divide us now will eventually start to fade away, and they’ll also come back. We’ll have these fights again.

1. Thanks go to my friend Will, who saw it at a used bookstore and thought I just might be nerdy enough to like it.

2. It’s worth noting that several of the Whig presidents did not give Congress as wide a berth as their party ideology called for, and Gerhardt speculates that Harrison might have joined that pattern. That’s certainly possible, of course, though, it’s hard to say since Harrison was president for such a short amount of time and the examples from his 31-day tenure we do have (in my opinion) don’t give us much to go off of.